* This is an older paper written many years ago.  However, it is still relevant today and seemed appropriate to post for people to understand some of the issues the justice system faces in wrongful convictions.  SR, 2014. 

Injustice is relatively easy to bear; what stings is justice – H. L. Mencken

1. Introduction 

wrongful conviction provincial court

Wrongful convictions are not limited to the most infamous cases in Canadian legal history. Every day, someone is pleading guilty to something they didn’t do. This paper seeks to expose what is framed as the “micro-miscarriages of justice”.

In recent years, Canadian society has come to recognise the reality of wrongful convictions. Donald Marshall, Thomas Sophonow, Guy Paul Morin, and David Milgaard are all examples of such failures. They illustrate how despite the protections the justice system affords a person in his or her prosecution, there are myriad and complex factors that may undermine and corrupt the pursuit for truth in criminal proceedings. These problems have now become topics of considerable debate and interest in legal academia and practise, and exemplified through formal commissions and ministerial review.

[1] These extensive commissions assist in identifying the contributing factors that may lead towards a wrongful conviction and assist all participating parties in the administration of justice in ensuring that these types of convictions do not recur.

It is of little controversy to say that these commissions on wrongful convictions, through their recommendations and observations, have had a considerable impact in this area of law, on the criminal justice system at large, and have likely prevented further wrongful convictions from recurring in certain types of crimes. Courts have recognised, implicitly and explicitly,[2] the value of these recommendations in their application of the law and have developed a newly found scrutiny to the cases before them where these problems might occur. Despite these considerable and worthy efforts, wrongful convictions continue to occur for a variety of reasons. Intuitively, one would presume that there are less wrongful convictions now because of the court’s awareness of scepticism in such areas where vulnerabilities may exist; however, this is only true in part. It also depends on the applicability of these safeguards. It depends on whether or not the recommendations, and the subsequent laws that result from them, are effective in treating wrongful convictions at all levels of criminal proceedings.

It is the intention of this paper to demonstrate that the analyses and recommendations of the commissions apply in different ways and with different strength in the majority of cases. This majority of cases are not of the same profile as Morin, Marshall, and Milgaard—the majority of cases do not possess similar content, consequences, or notoriety. In addition to this applicability, the commissions did not address many significant factors that apply almost exclusively, and with greater force, to these crimes less notoriety and severity. The vast majority of cases before the courts are not before juries, do not proceed with the same degree of sophistication, nor are they investigated in the same manner as they are in very high-profile cases. As a generalization, the more cases differ in degrees of severity, consequences, and notoriety, the more incommensurable the identified concerns of wrongful convictions become. This paper will examine how and why many of the recommendations are not applicable to cases of a different degree than those the commissions addressed. It will also examine how when the recommendations are compatible, the problems are often exacerbated. Most importantly, this paper sets out to identify those unique issues in lower level proceedings, which are contributing towards wrongful convictions on a daily basis and at a frequency and measure that far surpass anything previously identified as a cause of these miscarriages of justice.

For the purposes of this paper, it is necessary to make certain assumptions and limitations in order to isolate the matter to particular types of wrongful convictions and not to miscarriages of justice at large.[3] First, the term “wrongful conviction” refers to individuals found guilty in a court of law, yet who are factually innocent of the crime.[4] Second, it is critical that the term “conviction” also includes guilty pleas. It is the purpose of this paper to suggest that most wrongful convictions in Ontario occur in the form of guilty pleas. Some might argue that that is not really a conviction, to which there is a short answer and a long answer to this criticism. The short answer is: “Ask the Court of Appeal whether a guilty plea is really a conviction.”[5] The longer answer involves the reasons why the Court of Appeal treats it as such. This criticism is not addressed since it is a matter of polemics not relevant to those convicted or to the courts who accept their pleas. Third, any references made to a person attempting to maintain their innocence, is also assumed innocent in fact. Fourth, for reasons ser out below, this paper will focus on proceedings that are of a different class than those of the class like Morin, Marshall, and Milgaard. This difficult categorization is largely artificial yet it sets out to illustrate that many of the factors applicable to these high-profile cases are not applicable at lower level cases, as well as other factors that are not applicable to the higher-level proceedings that have tremendous influence at the lower levels. There is overlap back and forth and it is less of a category than it is a scale.

A rough categorization that may be helpful is those cases not enumerated under 469 of the Criminal Code. Another way to categorize is to emphasize proceedings commonly heard in the Provincial Court instead of the Superior Court of Justice.[6] Naturally, there is considerable overlap in the concepts identified below to all levels of court but it is the purpose of this paper to illustrate how the most common forms of wrongful convictions and the reasons thereof are crystallised most at levels short of high-profile offences.

2. Priority in Addressing Wrongful Convictions

The courts found Morin, Milgaard, and Sophonow guilty of murder. In every instance where there has been a review involving commissions or Ministerial intervention, the person was found guilty of an offence that is of considerable severity with a corresponding severe sentence. There are very legitimate and practical reasons why the justice system could not possibly review every person who has claimed a wrongful conviction status after a competent court has found the person guilty. It is only in the most serious and clearest of cases that these extensive reviews make feasible sense—as a matter of practicality and as a matter of efficient expenditure of taxpayer revenues. Insofar as individual cases, convicted persons have recourse to their respective appellate courts, which are effective in ensuring just results. The appellate courts are extensively cognizant of the problems addressed by these commissions and seek to ensure we do not revisit the same problems. Although some may argue the extent to which these recommendations are received and applied in the appellate courts, it would be difficult to deny that significant progress has been made at this level of court dealing with serious crimes. With serious crimes come the topics addressed by the commissions such as forensic evidence, jury addresses, jailhouse informants, false confessions, and so forth.

It is apparent that these problems are inherent within the criminal justice system at large and affect all accused persons in some manner or another. As Justice Rosenberg put it:

The miscarriage of justice in Donald Marshal Jr.’s case was not, as the Nova Scotia Court of Appeal claimed, “more apparent than real”. Mr. Marshal was the victim of a seriously flawed system. The system had let him down in localized and idiosyncratic ways. But, it had also failed him because of deeply entrenched practices and biases.[7][…]

The Commission found that “each component of the system—every check and balance-failed from the Sydney Police Force to the Department of the Attorney General”.   And, the Commission found “a widespread lack of understanding within the system of the appropriate roles of the Attorney General, the prosecutor and the police” and “a lack of structural control and organizational independence” that made it easier for unchecked and inappropriate decisions to be made.

Justice Rosenberg identifies the practices that leave the system vulnerable to wrongful convictions as a whole—not simply to isolated cases exemplified by Donald Marshall’s unfortunate circumstance; yet despite this reality, the commissions do not directly deal with how wrongful convictions can occur and take form in different ways at different levels of the criminal justice system. To think that the macro is a larger reflection of the micro is fallacious and not accurate in practice. One might think that the problems identified would apply globally to criminal cases, and in many ways they do, but there are factors, some of them particular to lower level offences, which have not been addressed that are major forces towards the total numbers of wrongful convictions. Most criminal cases before the courts do not involve the same concerns, or at least not to the same degree, as those of a high profile nature. As Professor Tanovich puts it:

It is impossible to know with any degree of certainty how many wrongful convictions occur in each year given that most errors go undetected. To date, it has largely been post-conviction review of murder and sexual assault cases that has served to illustrate the scope of the problem because in these cases, there is often some biological material that can be subjected to DNA testing.[8]

Professor’s Tanovich’s concerns are not exhaustive when it comes to lower level review and how it is that these cases go largely undetected by the courts. A majority of wrongful convictions that go by the wayside are guilty pleas—which as a matter of law[9], and as a matter of effects, is a conviction. Professor Tanovich notes in the same paper[10] that in 2001 and 2002, there were 452,500 criminal cases involving 992,600 charges. Forty percent of those cases were either stayed or withdrawn (34%), resulted in an acquittal (3%) or were otherwise terminated by the court (3%) leaving 271,500 cases where a conviction was entered. He estimates from these statistics that 90% involved a guilty plea.

Yet the same priority or attention, for a host of reasons, is not provided to lower level cases in the system. Any time there is talk or scrutiny of a wrongful conviction it is always a high-profile case. As mentioned above, there are very justifiable reasons for this emphasis. However, what is ignored is that the commission’s findings largely only apply to those types of cases. No attention is paid to those individuals who plead guilty for reasons wholly independent of their guilt or innocence. No analysis of why an accused person might decide that it is in his or her best interest to cut their losses and plead guilty instead of maintaining their innocence. No analysis of how the system operates in very different ways at different levels of charges. The most troubling aspect is that this area of proceedings, this level of criminal justice, is where most convictions occur and presumably (as a matter of statistics) where the most wrongful convictions occur. Despite the higher profile cases being examples of the most egregious types of wrongful convictions, it is necessary remind oneself of the fact that cumulatively the greatest effects are felt short of high-profile cases. We will shift our focus now on how and why there is a greater concern at these lower levels and the effects it has on the administration of justice.

3. Contributing Factors Leading Towards Wrongful Convictions in Common Cases:

Below, we will examine contributing factors at the more common, or “lower levels” of wrongful convictions such as: the current bail system in Ontario; conditions of the Province’s detention centres; adequate representation at trial; limited resources and means of accused persons; systematic racism; public perceptions, a fortiori, the government’s reaction to these problems, and the list continues. Furthermore, I will also suggest that those problems, which are identified by the various high-profile commissions, are often exacerbated and effected with greater impunity when they do occur at the lower levels for a variety of reasons. 

i)           The Effect of Judicial Interim Release in Ontario in Wrongful Convictions

I do not intend to develop the history of bail in Canada or Ontario and whether the fundamental reasons for providing judicial interim release are consistent with those reasons. Instead, I intend to show that the current system of interim release and society’s attitudes towards persons in charged with crimes, more people are being detained prior to trial and as a result, more guilty pleas are induced that are at times factually inconsistent with the events that occurred—namely that they are factually innocent. It is certainly not being asserted that every person, or even a majority of persons, are factually innocent. What this analysis will attempt to demonstrate is that people who are factually innocent and are detained prior to custody have considerable incentives to plead guilty and incredible disincentives to maintain their innocence. Such considerations largely outweigh, at least in the short term, any benefits of proving one’s innocence.

It is fair to say that the law has recognised there is great importance for an accused person’s release pending trial. So important is this principle that the Legislature enacted the right to reasonable bail into the very thread of Canadian law itself—the Charter of Rights and Freedoms. Section 11(e) reads:

Any person charged with an offence has the right not to be denied reasonable bail without just cause

A decision for release pending trial is one of the most important elements in the entire proceedings. It can have significant effects on the accused’s willingness to proceed or whether to plead out at a time most beneficial to him or her—notwithstanding their factual innocence or guilt. Assuming this tremendous importance and the ruinous consequences from an incorrect decision by a judicial officer at this stage in the proceeding, the courts must take a very diligent approach to ensure that incarceration prior to trial does not occur without just cause. In Ell v. Alberta,[11] the Supreme Court of Canada recognised Professor Friedland comments upon the importance of bail hearings in Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (1965), at p. 172:

The period before trial is too important to be left to guess-work and caprice. At stake in the process is the value of individual liberty. Custody during the period before trial not only affects the mental, social, and physical life of the accused and his family, but also may have a substantial impact on the result of the trial itself. The law should abhor any unnecessary deprivation of liberty and positive steps should be taken to ensure that detention before trial is kept to a minimum

However, Professor Friedland’s concerns are, sadly, not reflective of contemporary society. Those people who are not involved with the criminal justice system tend to distance themselves as much as possible with it and presume that there are “those people” or “criminals” who are arrested by the police, and that the police only make mistakes in the rarest of circumstances. It incorrectly believed by many that the persons detained before trial are of the same status as people sitting in penitentiaries convicted of gruesome crimes. Part of the cost of distance, is ignorance; and when you have ignorance in action everything is possible. Society has little understanding of how bail works, or how there is a difference between detention centres and prisons. Most importantly, society also has a misunderstanding of how there is a difference between someone sitting in the prisoner’s box at Old City Hall[12] in an orange jumpsuit and shackles because of allegations of drug possession, and a convict in Kingston Penitentiary—although it is easy to see how one could be confused. It is impossible to evaluate all of the reasons why society has little priority or concern with innocent people being detained before their trial, but it is safe to say that society is generally quite comfortable with it—at least by the demonstrated apathy towards pre-trial custody.

The Friedland study was one of the factors leading to enactment of the Bail Reform Act. The promise of that Act was that detention before trial would be reserved for a narrow class of accused for whom there was no alternative because of the serious risk they posed to the public or because their attendance in court could not otherwise be reasonably assured. The question that I think must now be asked is whether the bail provisions of the Criminal Code are being fairly administered and whether the Attorney General has a role in taking responsibility for that issue.[13]

Professor Paciocco says, “[O]urs is a legal culture in which we are becoming increasingly comfortable with preventative detention and pre-offence restraints on liberty.[14] He goes on to identify various provisions and law that supports this position such as sections 83.3 and ss. 133(19) of the Anti-Terrorism Act,[15] sections 810[16], 810.01[17], 810.1[18] and 810.2[19] of the Criminal Code of Canada. Partially because of this attitude, more and more people are being detained prior to trial.

Lou Strezos, in his paper entitled, “The Presumption of Innocence Behind Bars”[20] sets out an exhaustive and frightening analysis of the current situation of bail in Ontario that supports Professor Paciocco’s observations. Mr. Strezos, using a collection of Juristat statistics and his own considerable experience in criminal law in Ontario, asserts that too many individuals are denied bail in Canada under the current scheme of judicial interim release. Anyone who doubts this assertion, may feel more comfortable in accepting the comments of Justice Casey Hill who spoke in a panel on this topic at the 2003 Criminal Lawyer’s Association annual conference in Toronto.[21] He noted that the timeline on average is now 12 days before someone is brought before a justice of the peace, despite the requirement under the code that the person be brought before a justice within 24 hours. The figures were said to have been obtained the day before the speech from the deputy minister of correctional services. Justice Hill said it is unclear whether the situation is due to congested bail courts, problems obtaining legal aid or delays in lining up sureties, among other factors. However, the backlog is clearly adding to the sheer volume of people packed into provincial detention centres awaiting trial and many in violation of their constitutional rights. At last count (the day before—November 7, 2003), he noted that the numbers are so high — 52,179 : representing 62.7 per cent of total admissions — that more peopleconsidered legally innocent are in Ontario jails awaiting trial than are people convicted and serving sentences in provincial facilities. If this does not support the concerns of Professor Paciocco that we are living in a culture of preventative detention—irrespective of guilt or innocence; irrespective of demonstrated police errors; irrespective of the presumption of innocence; than it is difficult to say what does. As Justice Rosenberg put it: “[P]re-trial custody of accused persons is a difficult and complex issue that should concern everyone involved with the administration of justice.”[22]

In the Province of Ontario’s 1999 “Report of the Criminal Justice Review Committee”,[23] there was a recognition of fundamental problems in the bail system at that time in Ontario.

A problem requiring immediate attention is that approximately one third of all detained persons seeking pre-trial release appear three or more times in bail court before a ruling is made. This appears to be largely a function of overcrowded court dockets. Additional resources are urgently needed to address this problem.

In light of Justice Hill’s observations, things have only become worse since 1999 despite these recommendations. More legally innocent people are behind bars now than ever before, and consequently, more factually innocent people are behind bars as well.

What is significant from the above facts and observations to this paper is how these realities of interim release applies and instigates wrongful convictions within the system. As Lou Strezos put it: “It will come to no revelation to criminal lawyers that those accused denied bail are far more likely to plead guilty rather than have a trial. Detention is often an efficient means of extracting a guilty plea.”[24] The reasons are complex and intertwined but some of the factors include those issued addressed below. What is also no revelation is that the horrors of the detention centres, the hardships of being away from familial support, the difficulties of preparing a defence in custody, and everything else that comes along with being detained applies to both the innocent and guilty. Following the next step in the chain, innocent people will plead at a much higher frequency than if denied release pending trial. One might say that they would never plead to something that they did not do, but I think that the only way a defence lawyer would respect such a bold statement is having the person maintain it after spending a few months in the Don Jail. This will be analysed further below in graphic detail so that the reader can make their own judgments on scuffling miles in other people’s shoes.

Marc Rosenberg has understood this reality as he mentioned in a speech delivered to the Queen’s University in 2003:

As is now well known, Professor Friedland found an overuse of detention before trial. He raised serious questions about the fairness of the bail process and most troubling he found a “disturbing relationship” between denial of bail and the outcome of the trial. Accused who were detained prior to trial were more likely to be convicted and more likely to be sentenced to imprisonment.

Defence counsel are well aware of this (and consequently the people they represent), and it is then one more factor that an accused person takes into consideration when deciding whether to plead guilty or not—despite their factual innocence or guilt.

ii)          Detention Centres

Since accused persons are the only ones who live the horrors of pre-trial detention[25] in Ontario, it is impossible for the average person to come to terms with how significant a factor denial of bail contributes towards extracting guilty pleas. The only persons other than accused and convicts permitted to enter the detention centres on a routine basis are the correctional staff and defence counsel. Fortunately for the public’s awareness, Liberal MPP Dave Levac brought with him a Toronto Star reporter into the Don Jail detention centre after controversy over a judge’s decision in April of 2003 to grant a convict 3:1 credit for time served at this institution. This is how the reporter described what she experienced:

The stink is what gets you first inside the Don jail. It smells like vomit, urine and years of caked-in, grimy mould. Every prisoner in his bright orange jumpsuit, every overworked and harried guard, breathes this toxic stench in with every breath…

And, then, there’s the din, the mind-numbing din of hundreds of prisoners – 674 yesterday morning in a facility with a capacity of 504 yelling, banging and driving themselves crazy. Entering any of the numbered cell blocks at the Don is like walking into a madhouse from another century. Prisoners stand on each other’s shoulders to hoist themselves up against the bars, just to get a glimpse of the sky in little windows across concrete corridors. “We’re packed in here three to a cell. There’s no room. Sometimes, the toilets are overflowing. It’s really bad and there’s nothing we can do. “There are guys being peed on,” he says. “Like animals”

A kitchen tour is sickening…What looks like pea soup covers large areas of the floor. Mashed potatoes slime down the sides of counters and every surface is coated in grunge.

Court wagons pull up to the basement floor entrances every day with prisoners. Inside are five bullpens, as guards call the cells, with some prisoners still in street clothes, others in orange jumpsuits. About 25 guys are crammed into the first holding cell. “Hey guard, don’t you think there are too many people in here?” shouts another. “I can’t breathe. I can’t breathe,” says a guy from the floor. Down the corridor, another prisoner is just yelling. He just keeps yelling. “Don’t worry about him. He’s okay,” a guard says later. “He is all right.” [26]

When a person is denied bail, he must endure these conditions for months on end, often just awaiting trial. The convicted are treated no differently than an accused; persons charged with drug possession are treated the same as convicted persons on the most heinous of crimes; everyone eats the same pea soup and sleeps in the same feces strewn cells. This is what it costs a person to try to maintain their innocence. Needless to say, not everyone makes it; not everyone is “all right”. This reality is even known by members of the Court of Appeal. Justice Rosenberg makes the point well:

Prisoners awaiting trial, people who enjoy the presumption of innocence and the right to fundamental justice, are often housed in overcrowded medieval conditions with little access to exercise or programming . They are treated not as if they were presumed innocent but as if they had already been convicted. They are subjected to treatment that some would argue is inhumane and degrading, that is inconsistent with their Charter rights and with Canada’s obligations as a signatory to international agreements such as the International Covenant on Civil and Political Rights. Article 10 of that Treaty speaks directly to the state’s duty with respect to prisoners awaiting trial. It provides that accused “shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons”[27]

In addition to the reality of these conditions, there is also the matter of duration one must endure them. Due to a variety of reasons, we are facing one of the worst times in the Province’s history for trial delay. Recently, the Toronto Star[28] reported that there are 99,000 criminal cases pending for more than eight months — up to 65 per cent from 1997 to 2002. Because of these long delays,[29] persons charged with a crime must decide to themselves whether it is worth it to stick around, or to cut their losses and get out at the earliest opportunity with a criminal record by “pleading out”. One might think that this is not possible to serve less time for being accused of a crime, then it is for being convicted after a trial, yet because of these considerable delays and 2:1 credits (at times 3:1) due to the deplorable conditions of the detention centres that judges are often handing down, a person who is charged with a moderately serious offence who is denied bail is often able release from custody before their trial date if they plead guilty. In effect, it often costs an individual more in time and suffering to attempt to maintain their innocence then it does to plead guilty when your pre-trial credits (2:1 or 3:1) credit has reached your appropriate sentence. Professor Friedland’s assertion that pre-trial detention is effective at extracting guilty pleas could not have anticipated the absurdity of his correctness.

Justice Rosenberg also pointed out that not every accused has to remain in the detention centre that they are initially assigned to. He states:

To escape the conditions of the local holding jails, prisoners are offered the choice of a transfer to one of the newer jails but, of course, this removes them from their family and from convenient access to counsel to prepare for their trial. In exchange for better treatment, prisoners are hampered in their ability to defend themselves; a right guaranteed them by s. 11 of the Charter of Rights. In one recent case, Crown counsel argued that accused ought to be denied so-called “enhanced credit” for pre-trial custody due to the conditions at the Don Jail, because the accused were the authors of their own misfortune for refusing to take advantage of the chance to be transferred to an out-of-town holding facility.[30]

In addition to these serious problems, Justice Rosenberg does not point a recent practice of some justices of the peace “shipping-out” prisoners to out of jurisdiction[31] holding centres regardless of their intentions or desires. In fairness to Justice Rosenberg, what some of these justices of the peace are doing is most likely unlawful but the matter is often resolved by way of defence counsel in informal arrangements or by practical measures (such as pleading out) before any application is brought to challenge their transfer. In the same speech, Justice Rosenberg mentioned the ramifications that these transfers and conditions have upon an accused person in regards to their right to full answer and defence, and fairness in the criminal justice system. He mentions a threat to fairness and integrity in the system. It is this integrity that this paper is attempting to address—albeit fairness is interrelated as to why people make the decision to plead guilty instead of pursuing a trial.

When we speak of integrity, it implies a certain soundness, honesty, or freedom from perverted influences or motives. When the system is permeated with people pleading guilty for reasons wholly ancillary to their guilt or innocence, the integrity of the system as a whole is undermined. The criminal justice system’s very purpose is to ensure innocent people are not convicted of crimes they did not commit; as well as ensuring that people who did commit crimes are reprimanded accordingly. Currently, an accused person who is denied bail must make a choice on whether to pursue their innocence. In doing so, the factors ultimately taken into consideration are largely independent of their actual guilt or innocence. The justice system cannot tolerate a situation whereby factual guilt and innocence are only a small pebbles on the scales of influence. Things like the Charter of Rights and Freedoms, rules of evidence, factual determination by a competent court of law, the adversary system, hundreds of years of legal tradition to what we attribute the terms “Law” or “Justice” are all ivory towers far off in the distance when sitting in a medieval dungeon—effectively, Justice is usurped by the limits of human suffering.

iii)        The Role and Qualifications of Justices of the Peace in Ontario:

Since it is bail hearings that are the catalysts towards these forms of wrongful conviction, it is necessary and important to analyse how and who operates them and whether that contributes towards the great increases in the pre-detention detention. In Ontario, it was judges responsible for bail hearings up to the late 1990’s, but when that changed, justices of the peace (who were otherwise responsible for setting trial dates, endorsing warrants, and other judicial duties and administration) became responsible for deciding whether or not to grant bail to individuals prior to trial. For a long time, the appointment and role of justices of the peace in Ontario has been controversial. In Ell v. Alberta, [32] the Supreme Court touched upon this controversy at para 45:

Historically, there was a widespread belief that appointment to office was solely on political grounds. The McRuer Commission (1968) described the situation in Ontario as a “mockery of judicial office [that is] bound to depreciate respect for law and order in the community” (p. 518). It is hoped that patronage in the appointment process has been at least lessened if not eradicated since the time of that report. Unquestionably, the perception that appointment to judicial office is political in nature undermines public confidence in the administration of justice.

Unfortunately for Justice Major’s concerns, many people familiar with the current system are of the opinion that since that time, political patronage and controversial appointments has only grown. In fact, many hold the opinion that there has even been a change in the political tone of justices of the peace that are somewhat reflective of the corresponding political power. Of course, due to ethical obligations, no one familiar with the system can express their opinions except in the form of judicial challenges that are on topic with a case before the courts. Even if they do so choose, the law in Ontario supports exactly the opposite position in that justices of the peace are protected by 11(d) of the Charter and the current arrangement in Ontario is not a violation of section 7 of the Charter.[33]

In Eton Construction Co. v. Ontario[34], the Ontario Court of Appeal analysed the procedures and concerns in appointment of justices of the peace. In Eton they found that the concerns of Professor Mewitt were answered by the enactment of the Justices of the Peace Act in 1989. Some of these recommendations include judicial oversight, and educational and training programs for new justices. However, one recommendation that fell short was a minimal educational requirement. Many people see this to be the fundamental issue next to judicial independence in permitting justices of the peace to decide another’s liberty. As it presently stands, there is no minimum educational requirement and a person could theoretically be qualified to decide upon complex matter of law involving bail, analyse higher courts ruling and apply them accordingly, and then decide whether or not to release the person pending trial without even a high school education. Of course most justices of the peace do have more than a high school education, most have a college or university degree. But what is surprising is that none of these individuals require any formal legal training aside from the courses that they are required to take once appointed. A very small percentage of justices of the peace in Ontario hold law degrees or were members of the Bar.

The opposite approach was taken in Albert in a further effort to ensure that justices of the peace are qualified for the duties they perform, the legislature made a series of amendments regarding justices of the peace including qualification by an independent Judicial Council.[35] The Council agreed that a minimum qualification of membership in the Law Society of Alberta and five years related experience. In addition to this, any persons with inherent conflicts of interest[36] were prevented from appointment. [37] Those who met the requirements were permitted to be “sitting justices” who would then meet the requirements for judicial functions such as bail hearings. This was challenged all the way to the Supreme Court of Canada where they dismissed the appeal and upheld the action of the Alberta Legislature. Justice Major wrote at paragraph 24:

Alberta’s non-sitting justices of the peace exercised judicial functions directly related to the enforcement of law in the court system. They served on the front line of the criminal justice process, and performed numerous judicial functions that significantly affected the rights and liberties of individuals. Of singular importance was their jurisdiction over bail hearings. Justices of the peace are included in the definition of “justice” under s. 2 of the Criminal Code, R.S.C. 1985, c. C-46, and the respondents were thereby authorized to determine judicial interim release pursuant to s. 515 of the Code. Decisions on judicial interim release impact upon the right to security of the person under s. 7 of the Charter and the right not to be denied reasonable bail without just cause under s. 11(e).

Because this judgement only supported the actions of the Alberta Legislature, it did not address whether there is a positive obligation on the provinces to enact similar legislation to maintain consistency with the Charter. A challenge like Eton Construction Co. has yet to be brought to the Supreme Court as it directly applies to the presiding over bail hearings.[38]

Another troubling factor is that most bail reviews (some members of the bar have estimated up to 75%) are successful in Toronto and Brampton. This does not necessary indicate a direct correlation of correctness of the justices of the peace because at a bail review new conditions and new sureties are often proposed. However, not matter which way it is assessed, it is undeniable with these numbers that justices of the peace are getting it wrong a lot. And any time a person’s liberty is taken away incorrectly, there is due cause for concern. What is more troubling is that many (again, some may say most) individuals in pre-trial detention cannot afford a bail review and legal aid does not provide funds for counsel to conduct one. In consideration of this, an accused person’s initial bail hearing is for all intensive purposes their only bail hearing, and that hearing is in front of a justice of the peace. Despite these concerns regarding justices of the peace, and the concerns of the critical importance of bail hearings and the ramifications it can have on a person’s willingness to endure their pre-trial detention, there continues to exist a very high frequency of people being detained by individuals who lack formal legal training and, arguably, are at times inconsistent in their application of the law on bail.

The reason that these judicial concerns applies to the topic of wrongful convictions is due to the importance of bail to prevent false pleas that were explored in detail above. If it is true that there is a problem with a misapplication of the law vis a vis bail hearings, then it follows that these misapplications lead to wrongful convictions due to induced pleas caused by the overabundance of pre-trial detention. Since bail plays such a fundamental role in a person’s intention to maintain their innocence, only the highest level of judicial scrutiny will suffice since it goes to the very heart of the criminal justice system. It is ironic that where persons are most vulnerable in the system, the least scrutiny and protections are afforded to them; it is only when they have proved their worth by enduring the Don Jail that a judicial ear will consider their claim for liberty. 

iv)         Cyclical recidivism

Another factor that contributes to wrongful convictions, albeit less so than those reasons mentioned above, is recidivism. I am using the term “recidivism” here to describe not repeat offenders but repeat participants in the system—guilty or innocent on prior occasions. Those individuals who are familiar with the system have an even greater motivation to plead guilty falsely than those who are not. The reason for this is twofold: one is to do with expectations, and the other is a matter of a cost-benefit analysis to the accused.

A person who is familiar with the system knows what to expect when they are charged with a crime and what to expect when denied bail from prior occasions—assuming this is what happened on a prior occasion. For such an accused, they understand that to plead guilty may result in less time overall, and so it becomes a matter of assessing whether it is worth it to them to attempt to maintain their innocence on the present charge. What also is taken into consideration is whether they have a prior criminal record. If such a record already exists, then there is much less worth in shortening that record than there is in not having one at all. Of course, different types of offences can bring in different types of restrictions such as a firearms restriction that may add to the worth of maintaining innocence if that person uses a firearm to hunt, etc. There is also the consideration that adding further to a criminal record will only disadvantage the person later on, and may result in harsher sentences in future charges if any should occur. One must keep in mind that these long-term considerations are often made against the backdrop of immediate concerns of health, safety, and liberty in a detention centre. Suffice to say that familiarity breeds contempt despite one’s innocence or guilt, and often contributes as another factor an accused person takes into consideration in pleading to a crime they may have not committed.

v)          Limited resources for defence counsel

Defence counsel plays a vital role in protections against wrongful convictions. As Justice Cory, in the Sophonow Inquiry noted:

The role of defence counsel is of great importance to the administration of justice to out democratic society…It cannot be forgotten that innocent people are charged with murder; that there are innocent people charged with sexual assault; that there are innocent people charged with fraud; there are innocent people charged with any offence set out in the Criminal Code. It is the vitally important role of defence counsel to ensure that no person is found guilty unless guilt is proven beyond a reasonable doubt. The penalty of imprisonment take away the most basic of liberty of the subject. Indeed, for serious crimes, the deprivation of that liberty may result in a lifetime of imprisonment. The fundamental importance of the role of defence counsel in our democratic society is self-evident.

Despite this, adequate funding for defence counsel in Ontario has been at the center of controversy for a long time. Although limited funds for legal aid is felt at all levels of the criminal justice system, it is at the lower level of proceedings that it is felt the most by accused persons, consequently, it is also where it contributes the most to wrongful convictions. It is a very basic principle that with limited funds there are limited options — the same can be said for a person’s defence. Notwithstanding the remarkable job done by defence counsel in Ontario for what little means they do have, they are at times frustrated as a matter of reality to bring every argument or strategy forward that they see fit under the circumstances. Tremendous efforts, often on the expense account of counsel, are made to ensure that every person receives a complete and proper defence, but this is often prevented by financial limitations. In reality, there is only so much pro-bono type work that defence counsel can do. I am not asserting that this is a problem in every instance, and that in most cases accused do receive a complete defence when represented[39]. My intention is to point out that these financial limitations that lead to limitations of a defence are not felt with such severity as they are in high-profile cases with allocation of legal aid that specifically addresses the concerns of the individual These are serious considerations that must be taken into account by an accused when deciding to take the risk of going to trial or just plead guilty—again, irrespective of their guilt or innocence.

To further add to the problem of a proper legal defence, there are hundreds of unrepresented accused in the system who either do not qualify for legal aid, or who are not facing a serious enough consequence to be allotted counsel. Professor Paciocco makes the point:

It is a legal culture in which, even though there is a constitutional right to counsel, there are an appalling number of unrepresented accused persons because, while as a society we will fully fund efforts at depriving our citizens of their liberty, we will not fund their defence, even when they are in need.[40]

It is trite to point out the endless reasons how a person who is unrepresented by competent counsel can lead to a wrongful conviction—the problem is obvious to any lawyer. Those less familiar with the system need only go to their local traffic court and watch people repeatedly plead guilty (with an explanation)[41] to offences that they have either a significant legal defence, or are not guilty at all—there is few sights more painful for a lawyer to watch than an unrepresented accused attempting to cross-examine an officer on disputed evidence. Many unrepresented accused are charged with crimes that are devastating to a person’s livelihood if a criminal record is resulted. Qualification for legal aid is ordinarily set around a standard when there is a risk of a serious custodial sentence. However, the problem with this is that persons who acquire criminal records are subject to a host of problems later on—including the likelihood of a future wrongful conviction. Because of these problems, matters that are not a concern for police and crowns, such as investigations, forensic analysis, strong legal counsel, and other factors that work towards establishing guilt and innocence have resulted in a lopsidedness that disfavours the defence and accused person. The lower on the scale of seriousness of the crime, the lower on the scale of priority for the accused’s’ defence insofar as available funds, including the means required to prove one’s innocence. Justice is a three-legged stool whose legs are judges, crown attorneys, and defence counsel—when one leg on that stool collapses, the system falls flat on its ass, crushing the culpable and innocent alike.

vi)         Limited Resources of Crown Attorney

Defence counsel are not the only ones feeling the strain in ensuring justice is met. Crown attorneys in contemporary proceedings are often busy with heavy dockets and limited time to prepare and assess cases properly before speaking to the matter in court, or even before resolution meetings with other counsel. Justice Rosenberg identifies the problem as follows:

The heavy court dockets and the various administrative and other duties of Crown counsel mean that prosecutors rely heavily, if not exclusively, on the advice of police officers, officers that are often much more experienced than the Crown counsel and in whom the inexperience prosecutor reposes considerable trust. In the result, police information and fact appraisal dominates the prosecution process.[42]

Justice Rosenberg’s comments identify a very serious problem insofar as the relation between the Crown and police when the high caseloads force the Crown to rely on them too much. Despite efforts by the Crown to separate their role from the police, as a matter of necessity the Crown is often forced to rely more on the police than they would want to in trying to determine the worth of a case. What this eventually leads to is a no-negotiation policy like the one we have seen in some of the provinces’ courthouses. With no-negotiations, come the problems identified above involving bail and thus detention centres as it contributes towards wrongful convictions. Justice Rosenberg continues:

Confidence in the criminal justice system and thus the public interest is shaken as much by a suppression of a prosecution for improper motives as is the ill-advised pursuit of a prosecution, especially prosecution of an innocent person.

[…]In Regan, the Supreme Court recognized this danger by reference to the Report of the Morin Inquiry where Justice Kaufman “concluded that, at the root of the problems in the Morin case there had been a failure by the Crown prosecutor to assess objectively the reliability of evidence, before charges were laid”[43]

These comments point out the failures to reach a proper result can result in a lack of objective assessment. To return to the three-legged stool analogy, the Crown must ensure that their own leg remains strong by endeavouring towards objectivity rather than over-reliance on police forces that should play no part in these assessments. Unlike the Crown, the police’s intentions, motivations, and very purpose is to investigate, charge, and arrest people who are suspected of committing crimes. It is not the role of the constabulary to ensure justice is accomplished or to ensure that the innocent remain so. If the Crown loses sight of this fundamental difference between them and police, it is easy to understand how wrongful convictions can occur. I am sure no Crown attorney’s speaks of “rate of conviction success” as is sometimes overheard in police conversations, but to even ride anywhere near this line of purpose and mindset is frightening for societies’ innocent.

In addition to these central concern, there are also practical issues that flow from Crown over-reliance on police. One such practical concern are feelings of self-assurance the Crown may have in convincing him or herself that the police have arrested the right person. Naturally, there needs to be confidence in the police’s work, yet this must not lead to any sense of apathy in confidence, or over-cynicism of towards accused persons’ account when they are factually consistent with innocence. Another serious issue is the manner in which Crown synopses for bail hearings are prepared. Since it is the police who prepare these documents on a regular basis, they are often inflammatory that go beyond an objective reading in of the allegations. Once these inflammatory allegations are read to the justice of the peace hearing the bail hearing, that judicial officer may be inadvertently and unduly persuaded by the egregiousness of the allegations. To emphasize this point, researchers, Gail Kellough and Scot Wortley, from the University of Toronto found that

Accused persons who receivea negative personality assessment by the police are much morelikely to be detained than those who receive neutral assessments.[44]

Unfortunately, as a practical reality the Crown attorneys do not have sufficient resources to prepare the synopses and so it must be left to the police to do. As such, special attention must be paid so that a police officer’s personal opinions on the egregiousness of the allegations, or the particular distaste for the accused do not play any part in the bail hearing which are only to look at objective factors in determining whether someone is suitable for release. Specific to the purpose of this paper, it is at this level of court where the dockets are absurdly long[45]

vii)       Other Contributing Factors to Wrongful Convictions at Lower Level Proceedings:

There are many other concerns and considerations that lead to wrongful convictions at these micro / meso levels of court, as well as additional considerations an accused must take account of when deciding whether to falsely plead guilty. Each factor is sufficient in itself to reach a result that is unjust depending on the individual’s situation and the weight that these factors has on their own circumstances. I will not address each of these other factors since the point has been made that there are additional consideration that were not covered by the various commissions set on the topics of wrongful convictions. The following list is simply to illustrate briefly those differences between the Guy Paul Morins and the guy alleged to be dealing drugs insofar as wrongful convictions are concerned. Some of these factors include:

  • Political agendas and priority of this problem

It is no surprise to any politician that it is not a very healthy political platform to tackle the problems of wrongful convictions in the forms addressed above. As a generalization on society’s perspectives, the police get the right person, and when they don’t it was a bad police officer—not a systematic problem. It is interesting for a politician to challenge major failures as in Morin, Marshall, Milgaard, but to show concern for persons pleading guilty for crimes they did not commit, it is a losing battle. Because after all, what person in their right mind would plead guilty just to get out of (The Don) jail? Needless to say, society’s common sense (or the revolution thereof) has nothing to offer on this topic because there is nothing common or sensible about living in the current detention centres.

  • Systematic racism in the justice system

A recent, albeit long existing, topic of controversy is racial profiling and racism in the justice system. I just wish to make a very short suggestion on this topic: If one accepts that racial inequity exists in the justice system, then it follows that it also plays a disproportionate role in wrongful convictions as well. One example of this is a study prepared by University of Toronto criminology professor Scot Wortley who studied the treatment of people in two Toronto bail courts and found blacks were 1.5 times more likely to be detained than whites. More detentions means more wrongful pleas—the extent to which this is so is unclear as it relates to racism but obviously a point of consideration that should not be overlooked.

  • Immigration concerns

Perhaps one of the most serious concerns an accused who is an immigrant to Canada is the ramifications a conviction can have on a person’s possibility for deportation. When such an individual is charged they have to consider whether it is worth it to try to risk a trial and the consequences of conviction when a deal for a sentence for which they will not be deported is on table. Another consideration is a deal that offers two years less a day for which they will at least have an appeal in equity against their deportation order. There is likely nothing equal to these incentives/disincentives insofar as a wrongful plea is concerned.

4. Problems in Wrongful Convictions at Large are Exacerbated at the Micro-Level 

Some of the greater problems identified by the various commissions on wrongful convictions are even exacerbated further when these problems occur at levels of proceedings short of the seriousness and elaborateness as those the commissions addressed. Some of the findings of these commissions have found the following contributing elements in wrongful convictions:

  • Eyewitness misidentification;
  • Police mishandling of the investigation;
  • Inadequate disclosure by the prosecution;
  • Unreliable scientific evidence;
  • Criminals as witnesses who may have ulterior motives in providing testimony;
  • Inadequate defence work;
  • False confessions;
  • Misleading circumstantial evidence;
  • Etc.

All of these problems can occur at any level of court, even though it is more likely that many of them will be addressed at once in higher profile cases. Some of the problems will not apply because the type of investigation will not require some of the tools that result in these discrepancies such as forensic evidence, jailhouse informants, or complex legal issues involving juries to name a few. At lower levels of court, a person is not tried in front of a jury, is often not scrutinized by forensic evidence[46], and less likely to have a jailhouse informant planted for less serious crimes.

However, when these factors do apply it is a matter of simple resource allocation and practicality that less serious crimes will be treated with less seriousness by the prosecuting authorities. The most senior detectives (if detectives at all) are not assigned to assaults, break and enters, or minor drug trafficking investigations; senior Crown attorneys are not placed to prosecute them; forensic evidence that might establish guilt or innocence somewhat conclusively is not afforded for minor offences.[47] Of course, this may always work to the benefit of the accused as well, yet the point must still be made that with less resources comes less accuracy, and with less accuracy comes less precision in determining factual innocence or guilt.

5. Cost-benefit analysis to accused to challenge

It comes to no surprise to defence counsel a study published last year by Toronto criminologists Gail Kellough and Scot Wortley found accused people in pre-trial detention were 2.5 times more likely to plead guilty to get out of jail faster, even if they had a legitimate defence.[48] It is equally obvious that pre-trial custody is an effective way of extracting a guilty plea.[49] In our system of justice, there is a dirty little secret that everyone tries to ignore: many innocent people plead guilty. The reasons why are complex, multifarious, and different to every person’s situation, those illustrated above only talk of generalizations that apply in most instances a person has the option before them. Some other factors include[50], an inherent risk of trial, the possibility of getting a judge that has a reputation to convict, if convicted, they will have a criminal record and all the problems that flow from that – as opposed to an agreement for a discharge or peace bond; bail conditions that are impossible and cannot afford a bail review; if charged with a domestic offence, the effects that having a trial will have on the family or children; and the list continues.

Essentially, a person who is innocent and caught in the system must enter into a very serious and decisive cost-benefit analysis of what their innocence is worth to them. Someone who is not intimately experienced with this has no real comprehension of what it entails to remain steadfast; however, I hope the following hypothetical will be helpful in at least identifying some of these critical decisions one must make in that situation.

You are arrested late one evening at your residence for a crime that you did not commit. You are taken to the police station where you are held pending a bail hearing. The police take you to the Don Jail to await your hearing. Think back to what the Toronto Star reporter described—you are here for the next 10 days before your hearing.[51] You are then taken before a justice of the peace who detains you on the tertiary and secondary grounds[52]. You now have counsel at the approval of legal aid, but cannot afford the transcripts or the cost of a bail review. Therefore, you are staying in detention until your trial 4 months down the road.[53] You are taken back to the Don Jail where you will spend your time awaiting trial. 2 months after the bail hearing, you are having tremendous difficulty with your detention and ask your defence counsel what will happen if you plead guilty. She tells you that if you plead guilty now that you would likely get out this week because of the 2:1 credit of dead time you have already served. Ask yourself: how much is your innocence worth to you? For some, it is worth less than 2 months in the Don Jail. Unfortunately, this is not the exception to the rule when you have a detention rate of 75%; where more people are behind bars under the presumption of innocence than there are people convicted of crimes. There are limits to human suffering that are easily broken under the right conditions.

6. Appellate Review

The easiest criticism to this entire paper is to deflect the problem into confidence in the appeal process. Admittedly, the Ontario Court of Appeal is very consistent in ensuring that just and correct results are reached, and I do not wish to in any manner whatsoever challenge the effectiveness of an appeal. The question then becomes one of access, which is much different at lower levels then it is in the higher-profile cases. By the time that a person would become before the Court of Appeal in many instances, the person is no longer in custody, or decides to himself that it is not worth the cost in effort and money. It is a very bold supposition to think that is that the convicted person who maintains their innocence has the personal inclination and monetary means or access to appeal the decision that was wrong. To a person who has sufficient means (which is often the exception rather than the rule) to pay for counsel of their choice in a charge of “minimal” to “moderate” severity, the cost can be astronomical and is a significant deterrent. For a person who is no longer in custody, or who has little time left to serve, there must be a strong (nearly irrational) inclination to pursue the matter to an appellate court and exhaust their resources even further to maintain their innocence.

In addition to these concerns, in order to qualify for legal aid on an appeal, a person is generally required to have a letter from their trial lawyer indicating that the appeal has significant merit and that it is of enough significance that legal aid should provide funds. This is always a contentious problem. Despite its invaluable worth in ensuring consistency in justice and the law itself, the appellate process has its shortcomings involving access and therein lies the problem for most accused in the system.

In conclusion, wrongful convictions are not anomalies that appear in large, high-profile cases—they are happening daily and with greater frequency then ever regardless of the progress that has been made by applying various commissions’ recommendations. The justice system has yet to see a formal evaluation of wrongful convictions at the level of everyday proceedings, of offences other than murder. Perhaps this is because of the legal maxim de minimis non curat lex; perhaps it is that everyone the police charge are the right people; perhaps justices of the peace are just the first to recognise that 75% of people charged with a crime pose a significant and immediate threat to society or are a flight risk; perhaps we have bigger things to worry about as a Canadian society than an innocent person sitting in a medieval dungeon, being urinated on, and sleeping on concrete floors. Or perhaps it is time we fix this dirty little secret.



[1] For example: (1) Fred Kaufman, The Commission on Proceeding Involving Guy Paul Morin (Ontario Ministry of the Attorney General, 1998; Availible at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/); (2) Manitoba Department of Justice, The Inquiry Regarding Thomas Sophonow (Availible at http://www.gov.mb.ca/justice/sophonow/)

[2] R. v. Kporwodu (2003)176 C.C.C. (3d) 97 (Ont.Sup.Ct.) – importance of timely disclosure and complete forensic evidence; R. v. Brooks [2000] 1 S.C.R. 237 (S.C.C.) – scrutiny of jailhouse informants; R. v. Bennett [2003] O.J. No. 3810(ONCA) – the use and misuse of hair fibres; R. v. A.K. [2003] O.J. No. 2521 (Ont.Sup.Ct.) – prosecutorial and police tunnel vision.

[3] Which I believe to be a separate concept than those factually innocent convicted of crimes. Indeed, every time a result is reached by unjust means (regardless of factual correlation) is unjust, and hence a miscarriage of justice. As Antonio Lamer C.J.C. R. v. Mack, [1988] 2 S.C.R. 903 at p. 938 wrote “It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price.”

[4] I have made this distinction despite my own belief that they are not severable in law

[5] R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.). (A plea is assumed to be voluntary and informed) R. v. Ford [2000] O.J. No. 1370 at para. 34 (A plea of guilty is an admission of the facts in issue and a waiver of strict proof of the charge—plea entered to subsequent trial as truth of the facts—no violation of s.7 of the Charter).

[6] It is contentious to define this to less “serious” offences because I am attempting to suggest differences in matters of differing degree. However, the degree to which something can be said to be serious or not, will also be reflective of how the courts, police, and lawyers will deal with the problem and thus result in the issues addressed in this paper. It is a grey concept, but the factors addressed within are much too multi-faceted and complex to define it with certainty without a resulting artificiality.

[7] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice”(Paper presented in 2003 at Queen’s University in Kingston, Ontario, entitled: “The Attorney General in the 21st Century: A Symposium in Honour of Ian Scott.”)[8] Tanovich, David “In the Name of Innocence: Using Supreme Court of Canada Evidence Jurisprudence to Protect Against Wrongful Convictions” 2003, Criminal Lawyers Association Address[9] See note 4 above.[10] Tanovich, David, “In the Name of Innocence” ibid[11] [2003] S.C.J. No. 35 at para 24.[12] This is simply a familiar example of a Provincial Court.[13] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid[14] David M. Paciocco, Edelson and Associates; Professor, Common Law Section, University of Ottawa (Presentation at “20 Years of the Charter” The 2002 Annual Conference of the Ontario Criminal Lawyers’ Association Toronto, Ont., October 26, 2002)[15] S.C. 2001, c.41[16] Fear of injury to person or property.[17] Fear of criminal organization offence.[18] Fear of sexual offence.[19] Fear of serious personal injury[20] Paper delivered to the 2003 Fall Criminal Lawyer’s Association. Mr. Strezos is a criminal defense lawyer with the Ontario Bar.[21] Comments and remarks made by Justice Hill in a panel entitled “The Presumption of Innocence Behind Bars – Are too many accused denied bail? (November 8 2003, Toronto).[22] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid. [23] Available at (http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/crimjr/)[24] Strezos, Lou “Innocence Behind Bars” (Paper delivered to the 2003 Fall Criminal Lawyer’s Association) [unpublished][25] Convicted persons also live this horror but they are not “pre-trial detention” and are not directly the topic of this paper.[26] Linda Diebel – TORONTO STAR: May 7, 2003.[27] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid[28] Dec. 7, 2003[29] Out of custody matters are dealt with less expeditiously then those in custody but there is still a very considerable delay in most cases lasting months.[30] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid[31] Often out to one of the newer “super jails” located miles away from the city where they were charged such as Lindsay or Penetanguishe.[32] Ell v. Alberta, ibid. i[33] Eton Construction Co. v. Ontario [1996] O.J. No. 1049[34] Ibid[35] Justice Statutes Amendment Act, 1998, S.A. 1998, c. 18, s. 2.1(1).[36] For example, government employees, law enforcement officers, prosecutors, and prison guards.[37] s. 2.1(5) ibid[38] It is important to note that in Eton, the challenge was whether a justice of the peace has jurisdiction to hear a matter where there is a possibility of imprisonment under the Occupational Health and Safety Act under sections 11(d) and 7 of the Charter. As such, the matter of judicial interim release by justices of the peace was not directly challenged.[39] Often at the generosity of counsel, which goes beyond the legal aid certificate, they have for the case.[40] David M. Paciocco (Presentation at “20 Years of the Charter”) ibid. [41] Despite this type of plea’s invalidity in law. R. v. Shields [2002] O.J. No. 4876 (ONCA)[42] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid[43] Rosenberg, Marc J.A., “The Attorney General and the Administration of Justice” ibid[44] Remand for Plea. Bail Decisions and Plea Bargaining as Commensurate Decisions. The British Journal of Criminology42:186-210 (2002)[45] On Friday, November 12 (the week after the blackout) there were 1437 lines on dockets before add-ons. I think that it is safe to say that most of these were not addressed.[46] Some exceptions include drinking and driving offences, cyber-crime, firearms and some drug offences, and fraud.[47] And it is, legal aid will likely not fun independent forensic investigators for less serious crimes.[48] Gail Kellough and Scot Wortley: “Remand for Plea. Bail Decisions and Plea Bargaining as Commensurate Decisions” The British Journal of Criminology 42:186-210 (2002) at page 199.[49] Friedland, M.L. “Detention Before Trial” University of Toronto Press (1965)[50] These factors have been a collection of opinions of persons (other than accused) familiar with this, yet cannot be named for a variety of reasons—the most obvious being confidentiality and ethical constraints (hence the “dirty secret”).[51] Remember the average is 12 days according to the statistics above—this is a conservative number.[52] Forget the Hall tests—we will presume that none of them were met regardless.[53] Again, I think that this is a conservative number on an in-custody matter.